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Warts and all

The House of Representatives recently approved the maritime zones bill on third reading. It is a necessary and important proposed legislation for it embeds the Arbitral Award in the 2016 South China Sea (SCS) Arbitration in the Philippine domestic legal system. Section 10 declares that the Philippines shall exercise its sovereign rights in the exclusive economic zone (EEZ) and continental shelf (CS), including in the West Philippines Sea (WPS), in accordance with the Arbitral Award. No government may brush off the award. Courts may now interpret and apply it.

However, the bill deliberately left out unpalatable parts of the Arbitral Award.

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Section 8 of the bill defines our EEZ as the area within “200 nautical miles from the baselines from which the breadth of the territorial sea is measured, as established by Presidential Decree No. 1599” or the 1978 Philippine EEZ law. Section 9 defines our CS as the submarine areas that extend beyond its territorial sea up to “the outer edge of the continental margin” or up to a distance of 200 nautical miles “where the outer edge of the continental margin does not extend up to that distance.” It reserved the right to declare an extended CS (eCS).

The foregoing definitions contradict the definitions of the EEZ and CS in the WPS that the Philippines put forward and the Arbitral Tribunal acted upon.

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In its Statement of Claims to the Arbitral Tribunal, the Philippines initially asked for a declaration of an entitlement to the full 200 nautical miles EEZ as defined under PD 1599 (p. 18). In its Memorial, the Philippines turned its back on PD 1599 by revising the definition of the Philippine EEZ and CS as the area in the SCS which is “within 200 nm of the Philippine coast, but beyond 12 nm from any high-tide feature” (p. 162).

In other words, the Philippines waived its claim to the full 200 nautical miles EEZ/CS. Instead, it agreed to an EEZ that automatically enclaves the 12 nautical miles territorial sea (TS) of each rock in the SCS. This self-correction was necessary because a claim to a full EEZ/CS would have generated an overlap with the territorial seas of rocks in the area. Such overlap would have prevented the Arbitral Tribunal from exercising jurisdiction.

As the Philippines had tempered its claim, the Arbitral Tribunal declared that there is no issue of overlap between the EEZ/CS claim of the Philippines and the maritime zones of any rock within the same area in the SCS. Acting on such representation, the Arbitral Tribunal exercised jurisdiction and rendered the Arbitral Award.

In reverting to the PD 1599 definition of the EEZ and CS, the bill may be seen by the members of the Arbitral Tribunal as a betrayal of their trust. It will undermine the Arbitral Award in the eyes of the international community. Worse, it may yet give China additional ammunition to shoot down the Arbitral Award as having been rendered by an Arbitral Tribunal that lacked jurisdiction after all.

The bill overlooks that one outcome of the Arbitral Award is the disruption of our CS by the seabed of the enclaved TS of the rocks in the SCS. This altered state of our CS has implications on our entitlement to an eCS.

As the bill measures our CS in terms of either natural prolongation or distance, our eCS would have to be based on the integrity and continuity of said natural prolongation or distance. The trouble is that the Arbitral Award recognized the presence of enclaved TS, and their seabed can disrupt both the natural prolongation and distance of our CS. Already, Malaysia has taken advantage of the cut-off effect of the enclaved TS and the presence of troughs by claiming an eCS right underneath the Kalayaan Island Group.

A third yardstick needs to be adopted. Exploitability can be a fallback measure of our CS and eCS in those areas where natural prolongation and distance would not suffice.

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It is laudable that, through the bill, our domestic legal system is embracing the Arbitral Award. However, it must do so warts and all.

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Melissa Loja has a Ph.D. in international law. Romel Bagares teaches international law in three Manila law schools.

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TAGS: Arbitral Tribunal, China, South China Sea, territory, West Philippine Sea
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